In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Jeremy at jjip@btinternet.com

I was wondering whether you could kindly give me the names of one or two important judgements where someone was sued for making a movie allegedly copied from another movie (like the Norowzian case). Or maybe a case where a movie plot was copied from a book or a play?"

Sunday, 30 August 2009

An article in The Times suggests that Wordsworth Editions has secured an amazing coup by getting Stephen Joyce, James Joyce’s heir, to agree to a new budget edition of Ulysses. The article fails to mention that Joyce (1882–1941) is revived copyright, so anyone can publish Ulysses without Stephen Joyce’s permission so long as they cough up a reasonably royalty. OUP probably don’t pay any royalties to the Joyce estate on their edition as it was first published in 1993, after Joyce went out of copyright but before he came back in. The problem with publishing a budget edition of Ulysses may not be so much agreeing terms with the copyright owner as other costs – it’s long and notes are a must. For copyright owners like Stephen Joyce who are as concerned about controlling the manner of publication as seeing a financial return revived copyright is a small consolation.

Saturday, 29 August 2009

Peter Mandelson, the Secretary of State for Business, Innovation and Skills has made an interesting guest contribution to the Times (29th August 2009) titled “Taking something for nothing is wrong . . . . . . that’s why we must stop illegal file sharing and give the creative industries a breathing space”

The article, which is a good read, can be found in the Saturday Times for the princely sum of just £1.50 (ooo err – forget about David Geffen and Corfu, with an election on the way should we tell Mr Murdoch that Labour’s Lord Mandelson is helping him monetise content) or it can be found just one click away (for free, ooops) here.

Friday, 28 August 2009

Today the European Commission published a policy document, ‘Europeana – Next Steps’, and a consultation about the future of its digital library, Europeana. 4.6 million digitized books, maps, photographs, film clips and newspapers can now be accessed on Europeana – it has more than doubled in size since its launch in November 2008. Nevertheless the Commission would like to see much faster progress, setting a 2010 target of 10 million objects. Countries are contributing different amounts (nearly half of the content is from France) and different types of material (e.g. Goethe is available in three languages but not German). In order to make sure Europeana gets more content various issues are identified. Aside from the finance and governance, some key points are:

1) Where licences are created for in-copyright material, ensuring that the licences are pan-European.

2) Orphan works – ‘the Commission will prepare an impact assessment on the way to tackle the orphan work issue’.

3) The disparity between US and European public domain rules (in the US pre-1923 works are in the public domain):

‘The practical consequence is wider online access to digital books in the US than in Europe, and solutions involving rightholders and cultural institutions should be considered in order to redress this situation. These solutions could include speeding up the creation of registries for orphan and out of print works – already underway through the ARROW project – or the pragmatic use of a cut-off date that would impose a lower threshold for diligent search for works from before a certain date.’

4) Accessibility of digitised public domain material as some institutions charge for access:

‘The question is whether digitisation in itself creates new rights. Normally this would not be the case. However, the level of originality needed for the creation of copyright is not harmonised at European level, so the answer to the question may differ from one Member State to another (the originality criterion has, however, been harmonised for photographs, databases and computer software). It may also vary for different types of digitisation (for example the scanning of books is not the same as costly 3D rendering of objects).’

In parallel with the work being undertaken by the doughty SABIP crew here in the UK, WIPO will be holding a symposium on September 17 and 18 at the International Conference Centre in Geneva to address the need to improve the interface between international IP regimes. Programmes Outline here. List of Speakers here. Registration form here.

Just in case you were running out of reading matter, the European Commission published last week all the contributions submitted by interested parties on the Online Commerce Roundtable Report on opportunities and barriers to online retailing.

The Report itself explained the outcome of the discussions at a series of Roundtable meetings in relation to online retailing of music, among other things. As to music, the members of the Roundtable liked the idea of adopting licensing solutions which, they felt, were better suited to the online environment. The Commission, having asked interested parties to submit their comments, with a particular focus on licensing solutions, has now received them from associations representing broadcasters, performers, media interests and consumers, as well as individual companies.

Life's to short for the 1709 Blog team to plough through all of these responses, but any reader who wishes to do so and create a neat summary to be posted on the weblog will be much blessed.

Thursday, 27 August 2009

On Monday a US appeals court handed down a decision that could potentially repoen a $5-billion claim against IBM and send the open-source community into panic mode.

In 2003 the software company SCO Group sued IBM, claiming that IBM had infringed its copyright in the Unix operating code by donating it to the open-source Linux software ($5 billion damages were to be claimed). At which point, another software company, Novell, piped up, saying that they owned the Unix copyright. Novell have said they have no interest in suing over Unix (‘We don’t believe there is Unix in Linux’) – so why did they get involved in the SCO-IBM dispute? Possible motive: IBM was soon to invest $50 million in Novell’s new Linux enterprise. SCO then sued Novell but summary judgment was granted to Novell in 2007. The court also ruled that SCO must recognize Novell’s waiver of SCO’s claims against IBM. SCO filed for bankruptcy soon afterwards.

On Monday, a US appeals court reversed the 2007 summary judgment. The dispute concerns the scope of the rights in Unix that Novell sold to SCO’s predecessor, Santa Cruz Operation, in 1995. Novell say they retained ownership of the Unix copyright, granting Santa Cruz only an implied licence. SCO make much of the negotiations surrounding the contract. The appeals court held that California law does permit consideration of extrinsic evidence where a contract is ambiguous.

If SCO should win against Novell and, in spite of bankruptcy, go on to reopen the claim against IBM, then they stand to make not just a lot of money but heaps more enemies in the vociferous open-source community.…

Wednesday, 26 August 2009

The US National Music Publishers Association (NMPA) has filed copyright infringement lawsuits against two businesses which publish unlicensed lyrics through their websites. The lawsuits, headed up by Peermusic, Warner/Chappell and Bug Music, allege that LiveUniverse, Inc. and its owner Brad Greenspan, and Motive Force LLC and its owner Sean Colombo, engage in wilful copyright infringement. The suits, which were filed in filed in the Federal Courts of the Central District of California and Western District of Pennsylvania, seek equitable relief and damages for the defendants' unlicensed use of the lyrics on their websites and in conjunction with certain web applications. NMPA president David Israelite said

"These sites are profiting on the backs of songwriters. It is unfortunate thatcopyright holders must so frequently divert energies to protect their rights tolicense and distribute their works. However, the demand for music prompts aseemingly endless stream of illegal business models".

He added:

"Music fans are the biggest losers when licensed businesses, like LyricFind,Gracenote and TuneWiki can't survive and prosper because unlicensed, illegalbusinesses are allowed to thumb their noses at the law …we are confident thecourts will conclude that, like Napster and Grokster before them, these sitesare simply freeloading off artists and fans."

Well well well, Not just one Pirate Bay story today but four. What’s in the news – well, first and foremost The Pirate Bay website did momentarily go off line on 25 August, no doubt to gasps of relief from the music and film industries, but perhaps unsurprisingly (and as promised by the owners) the BitTorrent site was back online this morning. The removal of the service was the result of a decision of the Swedish district court, which ordered Black Internet to stop servicing The Pirate Bay – the court order was complied with in the face of a 500,000 Kroner fine - but the victory was short-lived and within twenty four hours it seems to be “service as normal”, although not through Blacks.

Secondly, the hunt for money goes on. As readers are probably aware, the four Pirate Bay founders, Peter Sunde Kolmisoppi, Fredrik Neij, Gottfried Svartholm Warg, and Carl Lundstrom, lost a major Swedish court case in April (reported on this blog) when they were found guilty of copyright violations and were fined and face jail sentences. In a second story from Sweden it appears that Sweden's government-run debt-collection agency, commonly referred to as the bailiff, said it could find no attachable assets belonging to three of the four founders of the site (Neij, Warg, and Lundstrom). The claimants in the case, a group of content and media owners, had asked the bailiff to collect the $4 million a court had awarded them after finding the four Pirate Bay founders guilty of copyright violations. But so far no damages and no jail as the four defendants are appealing the one year jail sentences handed down at the trial.

Elsewhere in pirate news, there is ongoing uncertainty around the E5.8 million ($8 million) sale of the Pirate Bay to Global Gaming Factory, something I find hard to imagine happening - particularly when the original Napster sale resulted in multi million pound settlements subsequent to its relaunch as a ‘legal’ site. Trading in GGF shares on the Swedish stock market were suspended and reports said that the company's chairman Magnus Bergman has resigned. However, the company's CEO Hans Pandeya maintained that the suspension was not a problem saying

"The Aktietorget [the Swedish stock market] said they wanted more information oninvestors, which we said we would release after the acquisition. There are risksand possible lawsuits, and this makes people nervous. None [of the investors]wants to give out their details, otherwise the media will attack them. You arenot supposed to buy an illegal site. This is out-of-the-box thinking. Because itis unconventional it is viewed with uncertainty by Swedish culture, even if Idon't view it that way. Because of that, [the bankers investigating the sale]want details and 100% assurances, but in business that is not always somethingyou can get",

adding he couldn’t comment on Bergman’s departure but that the Chairman was expected to have stepped down in the near future in all events. Well if the sale does go through I imagine the content industry hope that there will be at least $8 million in ‘assets’ for the bailiff to chase …

Finally to the Irish Republic: at the end of last month, the High Court ordered ISP Eircom to block access to The Pirate Bay – good news for content owners you might think … well maybe. The Major labels had clearly been hoping that in light of the court’s decision other broadband providers would follow suit and that the major ISPs, notably UPC and BT Ireland, would volunteer for a similar block. But UPC Ireland says it has refused and now the labels are seeking an interim injunction forcing it to block access to the Pirate Bay. UPC ran the fairly predictable response saying

“we cannot and will not meet demands from private parties that we restrict access to certain content of the internet. To agree to such a move would be to change the nature of an ISP from a communications provider to being a gatekeeper that censors the material its users can access. We believe that censorship such as this should not be agreed upon by private parties but that it is a matter for the courts and other state bodies.”

The Swedish Pirate Party polled 7.1% of the vote in the recent European elections.

Tuesday, 25 August 2009

Some people may be unimpressed that the new iPhone 3GS can ‘cut, copy & paste’. It’s perhaps a strangely unremarkable feature to choose for a TV ad – and tricky from a copyright law perspective too. Though there are an unlimited number of devices capable of infringing copyright, marketing this kind of functionality looks like a minefield. The ad (here) says:

‘This is the new iPhone and it lets you do some pretty incredible things. You can copy a phone number and paste it in a text. You can copy an article and paste it in an email [shows copying article and photo from lonelyplanet.com]. Or you can copy a map and … well, you get the idea [shows copying Google map]. Copy and paste on the iPhone 3GS. [Final screen: ‘Respect copyright’].’

‘Respect copyright’, coming after copying and emailing the article and photo, seems just a little bit cheeky given how restrictive the UK’s fair dealing provisions are, especially for photography. Perhaps Apple has an agreement with Lonely Planet but what about the rest of us? Apple is no stranger to objections that its ads are making misleading claims – for the iPhone’s speed or uniqueness. How about a misleading claim in terms of copyright law?

Anyway, if you’re reading this on your iPhone, whatever you do, don’t cut, copy & paste the photograph above and email it. Photographer Louis Psihoyos is currently suing Apple for $2,000,000 for using it in its i.TV app.

Once upon a time the big battle over unauthorised file-sharing was between copyright owners and the estimated 6 million or so illegal British downloaders. Now both these vested-interest combatants are sidelined as a potentially far bigger battle brews up, the warring parties being the UK government and the internet service providers (ISPs).

Today's BBC report on the government's latest position shows that the ISPs are quite furious. The new stance includes cutting repeat offenders off from the internet which, says UK ISP Talk Talk, was likely to "breach fundamental rights" and would not work. Talk Talk's competitor Virgin said that "persuasion, not coercion" was the preferred solution. ISPs point out that the disconnection of alleged offenders is futile, since they can easily mask or share their identities, or indeed their activities, in order to avoid detection. Today's move smacks of desperation:

Originally the Digital Britain report, published in June, gave Ofcom until 2012 to consider whether technical measures to catch pirates were necessary. However, according to a statement from the Department for Business, Innovation and Skills released ... that timeframe is now considered "too long to wait".

Times Online: Mandelson accused of caving in to lobbyists hereDaily Mail: speculation about a secret deal between Mandelson and Geffen is reignited here

Monday, 24 August 2009

Emanating from the US office of UK-based publishers Oxford University Press is a stream of fresh, enjoyable and informative books on copyright. They are (in no particular order):

Music and Copyright, by Ronald S. Rosen, which is a fascinating and informative book. The author, a partner in LA law firm TroyGould, is a seasoned copyright and trade mark litigator. If the little portrait photo on the back cover is anything to go by, he is small, grey and happy.

According to the publisher,

"The highly topical area of copyright law, as applied to music, is widely misunderstood by lawyers, business people, and - perhaps most seriously - the federal judiciary [That the judiciary should misunderstand copyright is something that has always baffled this reviewer, since the judges have the benefit of so much advice from litigation lawyers for both sides. Or perhaps that's why they misunderstand it ...]. More than ever, there is a need to understand music infringement issues within the context of copyright litigation [Potential defendants in infringement proceedings certainly need to understand it, but they're a not an easy market to reach]. In Music and Copyright , Ron Rosen provides readers with a practical and strategic roadmap to the music-infringement litigation process, beginning with the client's claim or defense and continuing through the selection and use of trial experts, discovery, motion practice, and trial.

Renowned for his expertise and career-long commitment to entertainment, intellectual property, and commercial litigation, Ron Rosen has condensed his experience into an essential guide for anyone involved in music-infringement litigation. Packed with elucidating examples from the author's own practice, Music and Copyright navigates the often thorny terrain between notions of the legal and the musical providing practical advice, case studies, forms, and commentary along the way".

Apart from the fact that the author is obviously a skilled and passionate litigator, there is another way in which this book is tilted towards the contentious rather than the non-contentious dimension of music copyright -- that is the consequence of the fact that the case law which interprets, explains and develops the bare words of statute law is itself the product of litigation. In any event, in an era in which so much non-contentious copyright is boringly ritualised into boilerplates and collective rites of administration, litigation is clearly where all the real fun is. In short, this is not the book for you if you want to conjure up a new scheme for licensing ringtones -- but it is ever so useful if you either have an infringement dispute or want to calculate your changes of emerging from one unscathed.

Like all of the books in this attractive series, there's nothing in the marketing to remind the purchaser that this is at base a US book for US practitioners. However, the author's thorough treatment of issues involving comparison of works, parody and suchlike will enrich the understanding, and strengthen the forensic armoury, of any practitioner anywhere.

Publishing Forms and Contracts, by Roy S. Kaufman, is a bit of an oddity -- a book on publishing contracts which, written by the Legal Director of one publishing house (the Wiley-Blackwell division of John Wiley & Sons), is published by another. Once upon a time this might have been regarded as a case of sleeping with the enemy, but now things are different: the common foe of all publishers is the major shift in purchasing and reading habits generated by the first decade of broadband-assisted internet use. It is in the interests of all paper-product publishers to streamline their production, smooth over the jagged edges of legal uncertainty and provide a litigation-free income stream for their products while the online sector grapples with business models that are more like income-free litigation streams.

These comments should not lead the reader to think that this book does not cover electronic publication, internet distribution and other current issues, since it most certainly does. Indeed, it is comforting to see that, while the technologies become increasingly unfamiliar, the legal principles that underpin contract law remain comfortingly constant.

Anyway, according to the publisher,

"Publishing continues to be a major industry worldwide [From a publisher like OUP one would expect nothing less], and this book is designed to assist the thousands of entities that regularly contract into a variety of agreements and need advice in drafting or negotiating the best terms for a deal, or otherwise employing or understanding specific terms used. This book-written and compiled by the in-house counsel of a major publishing house-offers more than 80 forms and templates of all of the major agreements regularly encountered by a publishing company, with strategic commentary on their use.

Topics covered include book publishing, periodical publishing, electronic publishing, litigation/litigation avoidance, e-commerce and permissions/subsidiary rights. Each chapter begins with introductory text setting forth key issues and other insights, and then presents the related forms, which in turn are accompanied by drafting and negotiating tips".

Having got out of the habit of using CDs for any purposes, I found it a little disconcerting to have to grapple with a CD-ROM rather than follow a hyperlink, but it's surprising how quickly one can adapt to an old technology when the need arises. Still, when the next edition is published I hope I'll have at least the option of accessing my precedents online, a form of delivery which has the advantage that it can be tinkered with in response to judicial interpretations, new statutes and changing fashions of draftsmanship.

Bibliographic details: ISBN13: 9780195367348, ISBN10: 0195367340. Paperback, xvii + 462 pages. Price: $145. Book's web page here. An accompanying CD-ROM to the book contains all of the forms in electronic format, which can easily be modified for the customer's use.

The third book in this little trilogy of reviews is An Associate's Guide to the Practice of Copyright Law, by Meaghan Hemmings Kent and Joshua J. Kaufman. Both authors practise with the venerable Venable LLP (Meaghan being a senior associate, Joshua being a partner). It is not apparent whether Joshua is related to Roy, author of the book reviewed immediately above.

According to the publisher,

"An Associate's Guide to the Practice of Copyright Law guides associates through what is typically the most challenging part of their job: knowing where to find information and what specifically they need to complete a particular task or assignment. Written by a senior associate and a supervising partner, the authors reign [Should this be 'rein'? Or is it a subtle allusion to 'royalties'?] in the work process for associates and give practice-oriented advice on important topics such as what questions to ask a client, what research to conduct, what elements must be met for various causes of action, the potential repercussions for various actions and the proper alternatives to be considered. The book also includes sample documents and pleadings, references to secondary sources and key cases in copyright law".

Well, actually the most challenging part of an associate's job is how to become a partner. This involves things like never being seen wandering around the office without an important-looking file or two in your hands, not booking social arrangements that can't be conveniently cancelled, remembering to ask intelligent-sounding questions and being slightly better than anyone else whose candidacy for promotion is being considered. While this book does not provide this important advice, it does the next-best thing by giving genuinely helpful tips that enable the young copyright practitioner to be a self-starter and to know how to steer a job from its inception to a plausible conclusion. Apart from a clear, concise text, the authors flag plenty of 'practice tips' which the reader can peruse while waiting to catch a bus (some of these tips are in fact summaries of legal rules).

As with the other books reviewed here, the focus is plainly on the US practitioner. Given the sui generis nature of US copyright law and practice and the sheer wealth of case law, this book will clearly be of less use to the lawyer from other jurisdictions. However, it will be handy for any non-US copyright lawyer who spends hours on the phone to his US counterparts and sometimes struggles to comprehend issues which are alien to him.

Sunday, 23 August 2009

A three-judge federal appeals court has upheld a 2007 decision that a Yahoo Inc Internet radio service is not required to pay “per play” fees to the copyright holders of sound recordings. In a second defeat for the labels which brought the appeal (including Arista Records, Sony BMG, Capitol Records Inc, Motown Records Co and Virgin Records America) the U.S. Second Circuit Court of Appeals upheld the 2007 jury verdict that Yahoo’s Launchcast did not give listeners enough control to be an "interactive service" that and that Launchcast only needs pay the licensing fees set by SoundExchange, the organsiation that collects royalties on sound recordings. Launchcast lets users create personalised "radio stations" that play songs in a particular genre or match pre-determined selection such as similarity to the listeners favorite artists or songs.

The original 2001 copyright infringement claim (and subsequent appeal) is really down to one question - what constitutes an “interactive service”? This term is defined is US law as a service

"that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording ... which is selected by or on behalf of the recipient".

In his 42-page decision Judge Richard Wesley said Congress enacted the law because previous laws did not do enough to protect sound recording copyright holders from falling record sales but found that Launchcast "does not provide sufficient control" to convince listeners to choose to listen to music on the Internet, instead of buying music. The record labels had argued that the ability of listeners to skip songs they don't like made the service interactive but the court disagreed saying "The user has control over the genre of songs to be played for 5,000 songs" with Judge Wesley adding “but this degree of control is no different from a traditional radio listener expressing a preference for a country music station over a classic rock station".

Whilst the case adds some clarity to what is and isn’t currently an interactive service in the US, it does little to clarify what other services might be covered, not least as the case started in 2001 and online music has moved on in leaps and bounds since then. I suspect ultimately the line between what will replace physical sales (which can currently be most simply defined as a “download”) and what might replace broadcasting (whether it is web “broadcasting” or streaming) will become so blurred they will be impossible to separate – and with new online and on-demand business models like LastFM and Spotify sprouting up on a regular basis this could be something the courts may need to revisit soon.

Friday, 21 August 2009

Microsoft, Yahoo and Amazon are to oppose the Google Book Settlement, joining a new coalition of opponents to be called the Open Book Alliance. The Alliance will be led by lawyer Gary L. Reback and the Internet Archive. Other members of the Alliance will include library and journalism associations. Peter Brantley, Director of the Internet Archive, tells me that ‘we’ll have something out from the group on a web site next week’.

It is hardly surprising to see these three weighing in, especially Google’s arch-rival, Microsoft. What is so eye-catching is to see them banding together. Microsoft and Yahoo, it is true, are new best friends, having only just signed a search-engine deal, giving Microsoft its long-awaited chance of matching Google (ironically, that deal too will be facing intense anti-competition scrutiny). Can it be that the threesome seek strength in numbers? Despite their joint front, it is thought that members of the Alliance will file objections with the court separately. Maybe it’s just a publicity stunt? The deadline for making an objection or expressing intent to appear at the Final Fairness Hearing is in two weeks. Now it won’t be creeping up quite so quietly.

The four year fight to keep the contents of France’s national library in French hands seems to have ended in defeat when the Bibliotheque Nationale de France (BNF) announced that it had sealed a deal with Google to digitise all of its texts. France has consistently tried to engage with other European countries to create a virtual library called Europeana, but that project seems to have stalled and Denis Bruckmann, Director of Collections at the library said that BNF will be joining 29 other leading libraries by opening its shelves to Google - quite simply because it was not cost effective for France to digitise its own works.

The estimated cost of digitising works from 1870 to 1940 alone was E80 million (about £68 million) with Bruckmann saying that as he only had E5 million a year available “we will not stop digitising our own digitising programme but if Google can enable us to go faster and farther, why not?” Blogger Pierre Assouline commented “it will thus have taken four years for the Library to pass from resistance to collaboration". Ouch!

Thursday, 20 August 2009

The 1709 Blog notes that the leading luminary in the copyright blogosphere Larry Lessig is taking a sabbatical break from blogging. As usual, he gives a cogent and reasoned account for his decision to do so -- and, as usual, I feel that passionate desire welling up within me to take issue with it, whether I disagree with it or not, for the fun of the debate. And as usual, I don't.

Right: research on the blogging community has proved conclusively that extensive exposure to the blogosphere exposes you to fatigue, premature ageing and a tendency to suffer withdrawal symptoms. Here Darren, a 23-year old blogger, is shown taking a brief break while he downloads a dream ...

Importantly, Larry's sabbatical will give us a chance to reflect on his writings and chuckle at some of the comments posted in response to them. Have a good break, and come back invigorated.

Here's an interesting Scottish decision, from Sheriff Principal Lockhart, in Mackie v Askew which considers jurisdiction in relation to infringement of copyright and moral rights by activities using the internet, with a focus on Article 5(3) of the Brussels I Regulation. In short:

"Photographs had been placed on the internet by Mackie, and Askew had then placed these photographs on her own internet site. The key issue is which of the Scottish Sheriff (lower) courts has jurisdiction, on the basis of Civil Jurisdiction and Judgments Act Order schedules 4 and 8. Scotland is split into a series of sheriffdoms, determined by geography. These courts have limited IP jurisidiction, but can look at copyright cases.

The court made particular reference to the Scottish decision in Bonnier Media Ltd v Gregg Lloyd and Kestrel Trading Corporation (2002 Scot CS 347 (1 July 2002) regarding jurisdiction, domain names and trade mark infringement. The court then held that the action could be raised where the harm is felt -- as well as where the harmful event occurs. Here, the harmful event occurred in the Sheriffdom of Greenock, where Askew is. Harm was felt, however, in the Sheriffdom of Ayr; and it is was therefore permitted for Mackie to raise the action in Ayr.

This note has been kindly furnished by Abbe E. L. Brown (Lecturer in Information Technology Law, University of Edinburgh), who adds:

"This decision is likely to be of key importance for those seeking to raise copyright actions Scotland, and may also be of broader interest regarding article 5(3) and litigation in relation to the internet".

Wednesday, 19 August 2009

On the hottest day of the year it is understandable that 1709's thoughts may turn to sitting outside with a cold drink in hand. And what cold drink epitomises the Great British Summer more than a refreshing glass of Pimm's? A glass of Pitchers, perhaps?

In case you haven't heard of Pitchers it is the alcoholic drink launched earlier this year by supermarket giant Sainsbury's, to which lemonade and fruit can be added. The supermarket described the drink as its “own version of the UK’s favourite summer cocktail”. Sound familiar? It certainly did to Diageo, the world's biggest drinks company, which happens to own the Pimm's brand and which has launched legal action against Sainsbury's.

The press has widely reported that Diageo has brought a claim against Sainsbury's for copyright infringement of its Pimm's brand. For example, the BBC reports that: "Drinks giant Diageo says it will take legal action against supermarket chain Sainsbury's, after alleging it broke copyright rules regarding Pimm's".

It must be true that Diageo has brought a claim for "breaking" [sic.] "copyright rules" [sic.]because we read it in the papers (!) and online (!!) but 1709 wonders whether Diageo is more likely to have brought a claim for trade mark infringement or passing off instead. Marketing Week seems to have done its homework and agrees. Sainsbury's response to the claim also seems to indicate that they are defending such a claim: "Our customers are savvy enough to know exactly what they're buying, the clue is in the name".

Meanwhile 1709 would be interested to know whether readers can identify any potential claims for copyright infringement that Diageo may have against Sainsbury's. The most plausible claim we have come up with is for infringing copyright in the Pimm's label, and even then Diageo may have to pin its hopes on the similarity of the rounded hump at the top of each of the labels. Analysis from IPKat here.

Sainsbury's has stated that it will "vigorously defend" the allegations. 1709 will be following the case with interest but, in the meantime, whose round is it?

Conflicting information flies about as to the price paid by 4 major record labels and label Merlin for shares in the streamed music service Spotify. The UK's industry weekly, Music Week, finally covered the conundrum this week.

The Washington Post had already published the respective holdings of Spotify shareholders on 7 August, including information drawn from Swedish news site Computer Sweden. This "unverified capitalization table information, reportedly based on a filing in Luxembourg where the company is headquartered" shows that the labels, Sony/BMG, Universal, Warners, EMI and Merlin collectively own 17.3% of Spotify and that they paid approximately 100,000 kroner (a little shy of ten thousand Euros), a fraction of the price paid by venture capital funds North Zone Ventures and Creandum.

Now why is this so interesting?

Record labels usually require hefty upfront licence fees from tech startups wishing to exploit the labels' catalogues of copyright recordings. These fees are often too steep for a start up. So, have the majors and their more modestly sized wizard chum, exchanged a licence to exploit their catalogues for shares in Spotify? And if so, will the artists be paid for their recordings streamed on the Spotify site?

Artists are paid royalties usually expressed by reference to monies "directly and identifiably" arising from the exploitation of the copyright sound recordings which are the subject of the record deal. If the shareholding information is correct and the labels are not receiving licence fees, all the labels earnings from Spotify will go straight to their bottom lines - with no participation in the money by the artists whose recordings are being streamed.

Tuesday, 18 August 2009

There has been a succession of articles about Peter Mandelson’s Corfu holiday and its impact on the UK’s proposed law to penalize illegal P2P file-sharing. It has been suggested that Mandelson is now demanding tougher legislation following a dinner with Hollywood producer David Geffen at the Rothschild villa (where last year Mandy's holiday conversations with George Osborne led to trouble). Some pieces are at best confusing and at worst wildly inaccurate. The Torygraph today says the consultation has come hot on the heels of his holiday – but the consultation was published on 16 June! Nor does the consultation document ‘include fines of up to £50,000 for persistent offenders, and the possibility of cutting off or restricting their Internet service’.

The ‘technical measures’ that the Government may introduce include ‘IP blocking’ and ‘port blocking’, unhelpfully ambiguous terms. I quizzed BIS about their meaning:

Q: ‘Do these mean that an alleged infringer would be blocked from accessing IP addresses or ports other than his own or could it mean that the alleged infringer is blocked from accessing his own IP address or port? If it could mean blocking the alleged infringer’s access to his own IP address or port, how does this practically differ from terminating their broadband account?’

A: ‘The former for IP blocking. Port blocking might be used to block access to those port most commonly used in P2P applications, however this is probably one of the less effective measures and is only included for completeness (technology may well change and a new form of port blocking become more effective)’

Still, can it be that the Corfu smoke is without fire? Has Mandy taken up a position that is inconsistent with the June consultation document? The Times reported: ‘A Whitehall source said: “Until the past week Mandelson had shown little personal interest in the Digital Britain agenda. Suddenly Peter returned from holiday and effectively issued this edict that the regulation needs to be tougher.”’

Digital Britain tweets say it’s all rubbish:

Perhaps we should wait and see what happens in the debate on the Digital Economy Bill and leave the spin to those who do it best.

Monday, 17 August 2009

On Friday we published a reader's inquiry concerning the current position of resale rights in Spain. Thanks to our readers we can now bring you a link to a pdf of the original Spanish text of Law 3/2008, 23 December 2008, here (thank you, Anon, for sending it) -- or you can download it at your leisure here (thank you, Dr Juan José Marín, Civil Law Professor and attorney with Gómez-Acebo & Pombo).

Saturday, 15 August 2009

On Wednesday the World Trade Organization published its response to America’s complaint that China’s restrictions on imports and distribution of American films, music and books are in breach of international treaties. The WTO report supports US demands to be able to sell directly to consumers rather than via state-owned companies. As the New York Times puts it: ‘The ruling goes to the heart of one of the biggest trade issues pending between China and the West: whether intellectual property, like copyrighted songs, books and movies, should be granted the same kind of protection from discriminatory trade practices as manufactured goods.’

If China responds, US copyright industries still face some significant hurdles. There is a thriving black market of very cheap pirated products for US companies to compete against. And China limits the number of foreign film cinema releases to 20 per year – a restriction that isn’t affected by the WTO ruling.

Potentially, however, the WTO decision presages a very welcome opening up of the Chinese market for America’s and other countries’ copyright industries. If this protectionist Great Wall is taken down, who knows how many hundreds of flowers may bloom…?

Friday, 14 August 2009

One of our readers has contacted us to see if he can invoke their collective copyright wisdom:

"I'm trying to find out what happened with the Spanish Artist's Resale Right. You may recall that in January 2008 Spain received a rap on the knuckles from the European Court of Justice for not implementing directive 2001/84. Spain's failure to implement was later noted by the Commission's Internal Market Scoreboard (at page 15). However, the most recent edition of the Scoreboard no longer "names and shames" Spain for its failure to implement the Directive. This suggests the Directive has now been implemented by Spain.

Right: a Spanish legislator, in the depth of despair following the ECJ decision

Would you be able to ask your readers if they have any details of the implementation? I have a short(ish) list of questions (on the variations that are at each member state's discretion when implementing the directive) if anyone is feeling especially helpful. But just a date for when implementation took place would be a good start".

If any reader has the answer, or his happy to be put in touch with our reader, just post a comment below or email me here, marking your email subject line "Spanish Resale".

Thursday, 13 August 2009

UK's Hull-based Karoo ISP was in the news and on this blog for disconnecting filesharers without notice. Publicity drove Karoo to alter policy to disconnection after 3 warnings and now, it is reported, disconnections will only be made where a court order exists supporting a successful action by a copyright owner.

It is such a comfort to know the ISP community thinks so long and so carefully about these issues - Karoo's Terms of Use include "6.3 You may not use Our networks or systems to distribute copyright material unless they are authorised to do so by the copyright owner" Drinks all round in the consumer lobby one imagines.

Wednesday, 12 August 2009

IP World reports that the UK's Everton Football Club has offended not just the sensitivities of New Zealand's Maori, but also tribal IP, by performing the traditional maori haka to launch the club's new football strip.

The New Zealand government had recognised the Ka Matehaka - traditionally performed by NZ's All Black Rugby team since 1905- as IP vested in the Ngati Toa tribe in February of this year. It seems my compatriots - for I have to declare an interest albeit as whanau of a different tribe - managed to get over the difficulties of authorship and duration. Consequently, the Ngati Toa were recognised as originators of the haka because Ngati Toa war leader Te Rauparaha had originated the traditional war dance.

After the rejection of a trademark application, the NZ goverment gave Ngati Toa powers to prevent "inappropriate uses" (examples here) as part of a larger settlement. A number of NZ tribes, represented by IP lawyer Maui Solomon, found Everton's misappropriation culturally insensitive - which is of course it is! For why - see here.

For those of you that want to join in when next the All Blacks visit and thrash your team, here is your cheat sheet:

UK Music, the pan music industry collective headed up by ex-Undertone Feargal Sharkey has published a new survey of 1,800 14-24 year olds conducted by the University of Hertfordshire which shows that whilst music remains of fundamental importance to young people’s lives, according to Sharkey “what they are clearly trying to explain to us at the minute is that we can get it for free and we’re not going to get caught”. The survey shows that 90% of youngsters would miss music more than anything else (yes, including their mobile phones) but points out that the vast majority of the respondents know what copyrights is, understood what copyright is but “just don’t care”. 61% admitted to illegal downloading and peer-to-peer file swapping and a whopping 86% to copying CDs for friends, with a growing trend sending music by email, Skype, MSN and Bluetooth or copying hard drives.

Whilst the number illegally downloading was marginally down on UK Music’s 2008 survey (then 63%) most illegal downloaders engage in illegal activity regularly (83% at least weekly) and the survey found that the computer is the top entertainment hub for playing music, followed closely by iPods and other portable music players. The average young person has 8,159 music tracks on their hard drive – the equivalent of 17 days of non-stop listening to unrepeated tracks and perhaps unsurprisingly 57% admitted to hard drive copying – in effect copying someone else’s entire music collection. More interestingly for the music industry, the survey points to some positive messages from the on demand generation - the downloaders who amass their music collections illegally are willing to pay, as long as it's from an "all-you-can-eat" download service and 85% of them said they would pay for such a service if it was available. Whilst the survey shows a huge enthusiasm for streaming services like Spotify and YouTube, 78% of respondents would not be prepared to pay for streaming - and the trick seems to be to make downloading affordable and to allow the consumer to have complete control - almost all the participants want the ability to copy music from one device to another although of the participants who said they wanted the ability to move music between various devices, and 56% of respondents believed that manufacturers of MP3 players, mobile phones and other recordable devices should pay a fee to artists whose music they have copied – quite how though doesn’t seem to cross many of the respondent’s minds if they don't pay up somewhere along the chain!

In his introduction to the report Sharkey writes that the “ultimate challenge for music and other IP-based industries is to reconcile what the customer wants with what is economically and humanly possible” adding "we will achieve nothing if we do not work with music fans and young music fans in particular. We ignore engagement at our peril. That message is loud and clear." As a representative of the record industry, music publishers, musicians, writers and composers Sharkey goes on to say "The music industry continues to change at breakneck speed, and having been the first to wrestle with the impact and disruption of digital we have had to learn very quickly," adding "While young people continue to display such a passion for music and the industry continues to forge ahead I remain positive that we can successfully rise to these challenges. There are no silver bullet solutions, but I am convinced this research points us towards at least some of the answers". With 85% of respondents who use illegal P2P networks saying they would swap to a legal ‘fixed fee’ unlimited download service and 77% saying the would still buy CDs it is not all doom and gloom – is it?

Tuesday, 11 August 2009

Yesterday, Reuters reported that the US Federal Communications Commission has launched an enquiry into allegations that US radio stations are refusing to play the recordings of US artists who have backed the campaign for performers to be paid for the broadcast of their recorded performances.

In June the FCC had received a petition from artists' music coalition musicFirst that set out their complaints, including the suggestion that advertisements supporting the proposed legislation are not being run by some stations. The FCC has invited public comments on the matter by September 23.

Monday, 10 August 2009

William Patry has launched a new blog, Moral Panics and the Copyright Wars. Patry, Senior Copyright Counsel at Google and author of a leading authority on US copyright law, previously wrote a blog for several years but ultimately drew it to a close last year. The new blog is designed to discuss issues raised by his latest book:

‘The book itself is an attempt to change the discourse on copyright, away from the phony moral panics that surround every new technology and seemingly every dispute about copyright. I regard copyright as a set of social relations, and not as a property right. The advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system, and not, as the copyright as property model does, by positing ownership of a property right in the Blackstonian sense of exercising absolute dominion as the natural state of affairs, and by regarding every effort to regulate for the public interest to be a hostile act that must be ferociously fought against as if it is an existential threat. Conversely, when we regard copyright as a set of social relationships, we can ditch the calls for its abolition: what we should want is not the absence of a copyright law, but rather an effective copyright law.’

‘Blogs have amazing capacity for interaction and improving learning,’ Patry says. ‘I will do my part to keep the discourse high-minded and non-partisan.’

Thursday, 6 August 2009

Here, via EDRI, is a curious episode. Finnish activist Mikko Rauhala has lodged an application to the European Court of Human Rights, claiming that the Finnish state has infringed his right to freedom of expression. This application follows a long bout of litigation that began when Rauhala started a discussion board on the internet for people to talk about the DVD copy protection method Content Scrambling System (CSS). Why did he do this? He says his motivation was to criticize the implementation of the EU Copyright Directive, which came into force in Finland in 2006. According to the implementation of the directive [says the report on EDRI -- you won't find this explicitly in the Directive], "organized discussion" regarding circumventing technological protection measures, like the CSS, was prohibited. Since Rauhala's motivation was reputedly to demonstrate the non-beneficial nature of the directive, he himself reported his actions to the Finnish police, "thinking that the police would not investigate the issue or that the public prosecutor would not press charges".

Supported by the Finnish Anti-Piracy Association, the public prosecutor was soon in action. The Helsinki District Court decided in Rauhala's favour, holding that CSS was not a type of protection measure covered by the Directive and that the ban did not therefore apply. The district attorney appealed to the Helsinki Appellate Court, which found Rauhala guilty of illegally circumventing a technological protection measure (Directive, Art.6) and of providing an illegal service for the circumvention of protection measures. The Supreme Court of Finland agreed.

Now Rauhala's case is on its to the European Court of Human Rights, for a ruling on whether this decision compromises his freedom of expression. He maintains that the discussion he was administering was within the confines of that right as enshrined in the Finnish Constitution, but that this issue was not recognised.

Wednesday, 5 August 2009

As the P2P debate rages and Europe releases the depressing results of a recent EU study on P2P - of which more later - Brussels is challenging the US in the real world of copyright.

The EU is threatening the US with trade sanctions over the US's failure to provide adequate copyright protection for European composers, songwriters and their publishers when their music is perfomed in restaurants and bars across the pond. US law gives an exemption from a liability to pay ASCAP, BMI or SESSAC licence fees for public performance of songs in certain bars and restaurants (annoyingly referred to as a "tax" in some reports). This is possible under a US copyright law amendment dating from the 1990s.

According to EuroActiv (31 July 2009), "The EU has safeguarded its rights to suspend trade benefits granted to the US if the Copyright Act is not amended," reads a European Commission report published in July regarding trade barriers used by the US.

Protests by the EU did result in US financial assistance for two whole years to compensate EU writers and publishers. This "deal" expired in 2004 and has not been replaced by any other compensation (or a change in US law).

ASCAP and BMI fought very hard against this amendment in the 1990s, sadly with very poor support from US songwriters who seemed reluctant to make the trip to Capitol Hill for the fight. (This writer wonders whether US restaurant and bar owners pay their greengrocers for the parsley that is used to garnish the food - if music is purportedly "incidental" to the dining or drinking experience, surely the parsley is incidental to the meal.)

And, those readers, who have no problem being deafened by the sound of the slamming stable door, might also like to suggest the Commission tries to correct the failure of US cinemas to pay performance royalties to composers of original film scores for the public performance of music in the film - a practice that dates from shortly after World War II and that has been redressed partly thanks only to the efforts in the UK of the PRS in their Membership Agreements (PRS 1 - Music User Nil -for a change). I suppose the argument might be that if music is not properly remunerated in the real world what hope is there in the metaverse.

And so to the Metaverse: Yesterday, along comes a profoundly depressing report from the European Commission - Commission Staff Working Document: "Europe's Digital Competitiveness Report" - very helpfully, and slightly gleefully summarised on p2p-blog.com. Item 5.1 in the Report, entitled Willingness to Pay for Content, reveals that a 2008 survey indicated that fewer than 5% of Europeans had paid for content in the preceding 3 months. Of such individuals, half of them said that nothing would persuade them to pay for content -- though improvements in quality, better payment methods and the right to share materials would tempt some 30% of those surveyed to change their habits. As the P2P blog says:

"...... a pretty important finding, and it goes counter to what entertainment industry executives have been claiming for years. It's impossible to compete with free, they argue, but paid online entertainment would thrive if only those file sharing sites and networks would get shut down."

The Report goes on:

"The diffusion of broadband has brought about rapid growth in the distribution of online content, legal as well as illegal. While young users are at the forefront in the use of the internet for content and entertainment activities, they also stand out from the rest of the population in their attitude towards the payment of online content; they are generally unwilling to pay for many of the services, except those providing some additional added value over and above that provided by those services they can obtain for free.

"This stylised fact is posing a number of challenges to policy makers, regulators and industry."

Oh really?!

The Commission Report's conclusion on paying for content should be an inspiration to us all: "solutions to these problems need to be found; through finding innovative and sustainable business models as well as a favourable regulatory environment" You don't say!

The July-August issue of Informa's ten-times a year Copyright World has now been published. The cover article, "Soul Stealers" by Nabarro's Ian Lowe and Camilla Waite, looks at the sorry state of copyright in photographs that have ended up online, asking "what control do you have over your online images?" In "A Shift Away from Three Stripes", Gregory Tulquois, Patrick Boiron and Duncan Calow (DLA Piper) compares and contrasts some current British and French positions as to the best way to deal with serial file sharers. There's also the usual news of appointments, recent judicial decisions and professional moves.

"This case turned on the requirement of consent for online news monitoring services. Mediebedriftenes Klareringstjeneste (a collecting society for copyright owners whose articles are used in news monitoring services) is owned by a trade organization called Mediebedriftenes Landsforening. Its function is to secure clearance for the digital copying of its members’ online newspapers. Mediebedriftenes Klareringstjeneste has for several years had agreements with companies which operate commercial, online-based news monitoring services in Norway.

One of the largest news monitors, Meltwater News AS, had an agreement with Klareringstjenesten for four years, before terminating the agreement. Meltwater was of the opinion that its use of the textual content of online newspapers did not actually generate a legal obligation to obtain clearance. The reason for this, in Meltwater’s view, was that such actions are not covered by the exclusive right of the copyright owner.

Meltwater then sued, seeking a declaration that Klareringstjenesten had no right to demand remuneration from Meltwater. Klareringstjenesten filed a counterclaim, seeking compensation for Meltwater’s use of the rights belonging to the online newspapers. The case was tried before the Oslo City Court on 11-13 March 2009 and the case was decided on 25 May 2009. Klareringstjenesten successfully resisted the declaratory claim and was awarded compensation of NOK 3,750,000 (c. £370,000), in addition to receiving its legal costs.

The judgment deals with fundamental questions regarding the legality of using copyright material published online.

The court agreed with Klareringstjenesten, stating that Meltwater’s indexing of copyright material constituted a reproduction of copyright works. Meltwater had argued that the Norwegian Copyright Act’s exception in favour of transient reproduction applied here and that Meltwater’s service therefore must be considered legal. However, since the court was not offered any evidence that the reproduction was transient it did not decide upon this matter. The court however found that the indexing/index was in itself an infringement of copyright. Other matters – also of fundamental significance, such as database protection - were raised by the parties, but not ruled upon. These were among others, as in Google v Copiepresse, reproduction and the quotation right.

Meltwater also argued that anyone who publishes copyright works online must be considered to have given tacit consent to its use. Based on the copyright notices provided on the online newspapers websites, Klareringstjenesten’s requests to Meltwater for remuneration and other circumstances, the court decided that there was more of a “explicit denial” than a tacit consent.

The judgment does not entail prohibition of use of online material, but establishes as a condition that certain forms of use require clearance – and actual payment if the right holder requires this. This judgment is the first case in Scandinavia (and in Europe?) to deals with the question whether indexing requires the consent of the copyright owner. The case has now been appealed to the district court and is expected to be heard during the fall".

An English translation of the judgment can be read here, along with an English version of the Norwegian Copyright Act. Thanks, Stine, for your efforts which are hugely appreciated by 1709 Blog readers.

Monday, 3 August 2009

Newspaper publishers fear the creation of new copyright exceptions that would apply to their content on the internet. They have been staking their claim in a pre-emptive move.

On 9 July newspaper publishers delivered the ‘Hamburg Declaration’ (right) to Viviane Reding, EU Commissioner for Information Society and Media. The Declaration is both reactionary and progressive. At the same time as welcoming the existing protection of copyright on the internet, it calls for it to be improved. The language is very abstract, so I asked the European Publishers Council what it’s all about.

A big part of it is ACAP (the Automated Content Access Protocol) though that’s only half the story, the progressive half. The Protocol is a system for publishers to express a copyright licence that applies to their content. It’s machine-readable, so can by read by search engines and news aggregators – a mechanical equivalent of Creative Commons. Currently publishers can withhold content from search engines all together but ACAP can formulate more complex licences (e.g. you may copy text but not pictures). So far only one search engine has adopted ACAP – the publishers want it to be widely used.

But why present the Declaration to the EU? The reason is not so much what the publishers want Europe to do as what they want it not to do (the reactionary agenda). Angela Mills Wade, Executive Director of the European Publishers Council, told me they are not looking for new legislation. What they want to do is counter ‘a very loud voice out there that says that there should be no laws for the internet, that is entirely anti-copyright and that thinks that copyright will destroy the ethos of the net’. So what specifically are they looking for from Viviane Reding?

‘We want her to support the existing copyright regime. We want her to recognise that we need a stable copyright environment upon which to build viable, revenue-generating business models. This may sound obvious but at the same time she is under pressure from other quarters, notably the user community, to REDUCE copyright protection by introducing new exceptions. We do not think this serves the long-term interests of consumers because less creative content would be made available online if users were able to help themselves to parts of it under new exceptions to copyright without either paying for it in the first place, or getting a licence to re-use it in new so-called “transformative” user-created content.’

From the Herald Sun, via Gemma O'Farrell, comes news of some fascinating copyright litigation in Australia over Down Under, the 1980s smash hit for Men At Work. The song is noted for a flute riff which, according to a preliminary ruling by Federal Court judge Justice Peter Jacobson, was lifted from a children's tune, Kookaburra Sits In The Old Gum Tree, written more than 75 years ago by Toorak teacher Marion Sinclair for a Girl Guides competition. The significance of this is that the claimants in the copyright infringement action, publishers Larrikin Music, have established their title to copyright in the riff. Defendants Sony BMG Music Entertainment and EMI Songs Australia maintained that Larrikin had no title to sue since the copyright belonged to Girl Guides Victoria by virtue of the operation of the rules of a competition which Marion Sinclair's tune won.

Larrikin said it owned the copyright, having bought it in 1988. The judge agreed. Said the judge:

"I do not consider that the words in the (contract Ms Sinclair signed with the Girl Guides) are sufficient to disclose, on an objective consideration, an intention to effect an assignment of copyright".

The date of the trial of the merits of the infringement claim is not yet known.

Saturday, 1 August 2009

A federal jury in Boston yesterday ordered Joel Tenenbaum, the Boston University postgraduate student who admitted illegally downloading and sharing music online, to pay $675,000 in damages to four record labels. The sum represents US $22,500 per track. Tenenbaum admitted in court that he had downloaded and distributed 30 songs and the only issue for the jury to decide was the quantum of damages to award the record labels. Under US federal law the recording companies were entitled to anything between $750 to $30,000 for each infringement and the law allows as much as $150,000 per track if the jury finds the infringements were wilful. On the witness stand Tenenbaum admitted downloading more than 800 songs from 1999 to 2007 on his home computer and his mother (a lawyer specialising in family law) made it clear in her evidence that she had warned him about his downloading. The Jury took just three hours to find Tenenbaum guilty of wilful infringement.

Tenenbaum seemed to take some comfort in the fact that the maximum jurors could have awarded in this case was $4.5 million saying “I'm disappointed, but I'm thankful it wasn't millions” adding "to me it sends a message of 'We considered your side with some legitimacy". The postgraduate physics student now says he will appeal and dependent on that appeal probably apply for bankruptcy. Tenenbaum was originally offered a settlement at approximately US $3,000 by the Recording Industry Association of America - which he countered by offering $500 saying he couldn’t afford to pay more - and then after some further negotiations Tenenbaum says he refused a settlement at $10,500 which he says was demanded by the RIAA - in hindsight a substantially cheaper option. But then hindsight is marvellous thing ...

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